Monday, February 08, 2010

Senate not bound by past screwups

Under long-standing resolutions, the Senate considers itself to be a "continuing body" whose parliamentary rules remain in effect unless a two-thirds supermajority votes to change them. The more authoritarian House, whose entire membership stands for election every two years, sets its rules at the start of each Congress by a majority vote.

Based on that I feared the worst. If that is the case, then we are screwed and have no way to fix our broken Senate and our dysfunctional government. In other words, we are going to go the way of the the Polish legislature, the Sejm, as Paul Krugman warned today.

But then with a little more research, that the WaPo reporter obviously did not do, I was reassured that such is not the case...

In 1892, the U.S. Supreme Court ruled in United States v. Ballin that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by majority vote. In 1917, Senator John J. Walsh contended the majority of the Senate could revise a procedural rule at any time, despite the requirement of the Senate rules that a two-thirds majority is necessary to approve a rule change. "When the Constitution says, 'Each House may determine its rules of proceedings,' it means that each House may, by a majority vote, a quorum present, determine its rules," Walsh told the Senate. Opponents countered that Walsh's "Constitutional option" would lead to procedural chaos, but his argument was a key factor in the adoption of the first cloture rule later that year. In 1957, Vice President Richard Nixon issued an advisory opinion stating that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority.[5] Nixon's advisory opinion, along with similar opinions by Hubert Humphrey and Nelson Rockefeller, has been cited as precedent to support the view that the Senate may amend its rules at the beginning of the session with a simple majority vote.

So, thank God there is a precedent for the Senate to still sets its own rules by majority rule. Now we just need to hope there will be enough Democrats left standing after the mid-term elections who will vote to change the rules at the start of the next session.